Directory:Akahele/The trade of free culture

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The trade of free culture

Several weeks ago, I wrote an article here about Wikipedia and Art, which discussed aspects of the Wikipedia Art project.

"Wikipedia Art logo
Official logo of the Wikipedia Art project

This performance art project started by artists Scott Kildall and Nathaniel Stern created quite a bit of discussion in the Art world, both negative and positive. The reaction in the Wikipedia world was, of course, completely predictable. The project has regained a place in Wikipedia article space (at least until the deletion hit squad reads this article), through what is being now called the "Wikipedia Art controversy".

This story escalated, by some strange coincidence, on the very day that I posted my article about Wikipedia Art on this blog: on March 23, 2009, Scott Kildall received an initial letter from Douglas Isenberg, hired legal counsel for the Wikimedia Foundation. The letter complained that the Wikipedia Art website may be violating trademark law by its use of "Wikipedia" in the domain name, which is a registered trademark in the US (the Foundation later emphasized it did not in fact assert that Wikipedia Art was violating trademark law). This incident was covered by an article on the Electronic Freedom Foundation website and by further articles on the Ars Technica and Digital Journal websites. This independent coverage, ironically, seems to indicate that Wikipedia Art has suddenly fulfilled the notability guidelines for inclusion in Wikipedia.

The Wikimedia Foundation (which controls Wikipedia and other related projects) has long been a leading supporter of the "free culture" movement, insisting that all contributions made to its projects be released under "free licenses", either the GNU free software license (a license which has been found to be highly unsuitable for encyclopedia entries) or (more recently) the Creative Commons. This is a phenomenon that I have examined already in depth on the Wikipedia Review blog: in two articles which may be read here and here.

The idea of the "free culture" movement is both confusing for those not involved in the creative process and completely unnecessary for creators, since creators already have all of the rights to their works by definition. My personal position has always been that these "free culture" projects are always unnecessarily injecting into the agreements uninvolved third-parties who have no business being involved in the first place. A creator has the right to grant free licenses to whomever he or she pleases, without any of these "free culture" licenses. The fact that these unnecessary steps are being added to this process is already, in my mind, something which doesn't look like it's entirely upfront. When you consider that Wikipedia is now involved in unilaterally changing the terms of their licenses already contracted to copyright holders without consulting the copyright holders themselves, this becomes something which is only theoretically legal and which will survive only if unchallenged.

Oddly, especially in light of this insistence that others release their contributions under a free license, both the Wikipedia name and logo are registered trademarks. This is not to say that either is the work of the Wikimedia Foundation, but were works by individual contributors (Dr. Larry Sanger, co-founder of Wikipedia in the case of the name -- which Dr. Sanger confirmed to me via e-mail; and a collective of two users in the case of the logo) which were "donated" to the Wikimedia Foundation, their copyright being "assigned" to the Foundation, which later registered both as trademarks. Of course, the registration of trademarks is based on "use" not "ownership".

An extremely animated discussion of this incident began on the Wikimedia Foundation mailing list with a comment made by WMF legal council Mike Godwin, who tried to downplay the letter that was sent to Kildall. Unfortunately, at the time of this writing, it would seem that this de-escalation did not include granting permission for the Wikipedia Art site to use the "Wikipedia" name.

This is confounded by the idea that the Wikimedia Foundation requires users to adhere to a policy which is referred to as No Legal Threats. This policy states that anyone who makes a legal threat against other Wikipedia editors, or against the Foundation itself, will be blocked from using Foundation-hosted services until the legal threat is resolved. However, this courtesy routinely is not extended to those with whom the Wikimedia Foundation has legal differences. There is no evidence that any "dispute resolution" procedure was followed, and as a legally trained Wikipedian pointed out on the English Wikipedia mailing list, a letter from an attorney is usually perceived as a "legal threat", regardless of how nicely the way the threat is phrased.

To further complicate matters, Wikipedia and other Wikimedia projects depend on the allowances of "fair use" as it is defined under US law in order to illustrate certain articles, such as pasting in short clips of audio recordings or images of album covers. This "fair use" of copyright materials was at the center of the recent Virgin Killer album cover incident, and it is an integral part of the way that the Wikipedia community has decided that this type of use should be handled. As a matter of fact, if articles such as this and this are any indication, Wikipedia contributors have even more radical ideas about copyright and trademarks: they should be banned as the evil things that they are!

Of course, one of the main problems of "free culture" is that it doesn't generate money, except if you license something to somebody else (something that you don't own but which has been labeled "free"). In order to license the content, you have to have rights to grant. The Wikimedia Foundation owns almost none of the content it serves, because the copyright owners do: the Foundation is only restating the grant of a license for its use, and this in spite of insisting that they are not "publishing" the material. It would seem that the only pieces of content that the Wikimedia Foundation owns openly would be the name "Wikipedia" and the project logos. They are however currently involved in a licensing and "co-branding" project with France Telecom's Orange mobile phone network. Yet even in the Wikimedia Foundation's press release about this new business relationship, the language used by Kul Wadhwa of the Foundation's Business Development department (which is sort of an odd concept for a "free culture", "open source" project to have in the first place) is rather mixed. On one hand we have Wadhwa saying :

I have been consistently impressed by their dedication to the Foundation’s mission of spreading free knowledge. They appreciate the importance of our community in everything we do, they’re committed to supporting neutral point-of-view, and they have an increasing interest in open source technology. The Foundation is always interested in business partnerships which understand our culture and help expand our mission, and Orange is an ideal partner for us.

However in the next statement, Wadhwa leaves the "free culture" world behind and enters the board room:

This is an important new revenue stream to build on our successful fundraising campaigns...

The Q&A page also makes for interesting reading. Answer three is especially interesting here :

Q3: Is this partnership a way for Wikimedia to monetize content?

A3: The Wikimedia Foundation projects are free of advertising, and we don't expect that will ever change. However, under the free license used by the Wikimedia projects, it has always been permissible for other entities to republish Wikimedia project content, and add advertisements to it. Many organizations have done this. Our mission is to disseminate educational materials as widely as possible; we are happy to partner with both non-commercial and commercial entities to achieve that goal.

Within this partnership we have agreed that Orange will place targeted marketing alongside the branded Wikimedia content it will republish on the Orange mobile and web platforms.

Although these two situations, Wikipedia Art and the Orange agreement, do not seem at the surface to be related, they come to pass at approximately the same time. This perceived change in attitude from the traditional "free culture" outlook to a more "bottom line, business-oriented" perspective seems to be interconnected in a very profound way.

On one hand, we have a not-for-profit charity entering into a for-profit relationship with another company to license content which they neither own nor claim to "publish", but only "host". The content is all made by third-parties who retain the copyright, upon which the not-for-profit is currently attempting to impose a change of license without formally consulting all of the copyright holders, and which contains a great deal of copyright material which can only be justified under a US "fair use law". In addition, much of this is concurrently happening in the European Union, where the copyright laws are much stronger and where "fair use" doesn't apply.

And then you have two guys who decided to make a performance art project on the not-for-profit site and are using the not-for-profit's name on their non-commercial website to discuss their own artistic work connected to the site.

Which is the bigger problem for the Wikipedia community? Which is a bigger threat to Wikipedia's future? Which is a bigger threat to society?

As a work of performance art, however, Wikipedia Art must be seen as a successful action, at least according to terms that I described in my initial article here. Wikipedia Art has acted as a mirror reflecting reality back to Wikipedia and the people who consider themselves part of that "community". As one participant posted on the English Wikipedia mailing list:

Yeah, Wikipedia Art are basically trolls, but I find this disturbing. If Wikipedia can make legal threats to trolls and deny it, and accuse trolls of trademark violation in a baseless way, they can do it to anyone, and the next guy they do it to may not necessarily be a troll.

So, Akahele salutes Kildall and Stein for creating this situation in which the reality of the Wikimedia Foundation has been so clearly illustrated.

Image credits


5 Responses to “The trade of free culture”

Wikipedia governance is riddled with contradictions and inconsistencies. And it is aggressive at every turn, pushing any of its many positions.
The most obvious flaw is the empty rhetorical cry of “No Censorship” when in reality, the same Wikipedia editors “censor” and mould facts every minute of the day. They aggressively laud the “No Censorship” fallacy one minute, then aggressively edit out “unencyclopedic” content the next.
Wikipedians often bandy around rallying cries denouncing Copyright and see themselves as at the vanguard of “Free Culture”. So it comes as no surprise that on the other hand, Wikipedia has become more aggressively ruthless in the protection of its own Copyright.
Such contradictions are typical. One could spend a week noting them all and only scratch the surface.
Paul Wehage
And another predictable thing has happened: The “Wikipedia Art Controversy” article is up for deletion..
One choice quote:
Comment. Their site has a collation of news reports, which may be an easy way to find reliable sources on this story:[1]. It’s an interesting exercise: create a website potentially infringing on Wikipedia’s trademark, create a page about it on Wikipedia, blog about its deletion and start a controversy about Wikipedia apparently censoring art, gaining coverage enough to make the story notable… Fences and windows (talk) 04:36, 30 April 2009 (UTC)
So, apparently, Kildall and Stein are doing this to be able to have an article in Wikipedia….never mind that they already DO have articles in Wikipedia. It just boils down to WP:IDONTLIKEIT
Fences and windows
*Ahem* Paul, I didn’t argue for deletion. Quit the Wikilawyering. I was just commenting on the circular nature of what they are up to. The “Wikipedia Art controversy” is (sadly) notable thanks to the Wikimedia Foundation’s footbullet of sending lawyers’ letters. I don’t think that Wikipedia Art are right to try to ride on the fame of the Wikipedia name, but perhaps the best approach would have been to give them the cold shoulder. Do not feed the trolls, as the saying goes.
The original deletion of the page about Wikipedia Art was quite correct, and if the creators didn’t see it coming then they’re amazingly naive. Wikipedia is about creating an encyclopedia – it has a sandbox to play in for test edits, but this was plain old vandalism. If I shit on your doorstep, I don’t expect you to frame it and call it a work of art. The reaction to the deletion has been wounded pride among the art community because Wikipedia could see that these Emperors of art had no clothes on.
These artists might think they’re being creative with their little “intervention”, but they’re put in the shade by the hackers from 4chan, many of whom are younger than the 18-year-old Wikipedia editor who deleted the Wikipedia Art page – I find the focus on his age in the reaction to the deletion distasteful.
4channers recently hacked the Time 100 online poll using scripts. Not only did their founder, moot, “win” the poll, but the initials of the top results even spelled out “Marblecake also the Game”. Now that is much more creative than anything I’ve seen from Wikipedia Art. There’s a section on the Time 100 Wikipedia page if you want to read more, including the meaning of the message.
Paul Wehage
I find it ironic that this Wikipedia anon is trying to inform me of something (the Time 100/4Chan business) that we here at Akahele have been discussing for the past week–I believe that tomorrow’s post by Judd Bagley will discuss this subject. It was almost the subject of my article last week, but being involved in the Arts myself, I found that the Wikipedia Art situation merited more immediate attention.
The Wikipedia Art situation is yet another instance of Kool-aid drinkers who are engaging in moving the goalposts because WP:IDONTLIKEIT. Whether you personally believe that Wikipedia Art is important or not, the controversy that it generated is clearly notable under the criteria that you (as part of the Wikipedia community) have established for inclusion. It more than meets those criteria. Kildall and Stein are also clearly notable artists.
If you don’t like the fact that Wikipedia Art is now clearly notable, then complain to the WMF legal staff who created this situation by sending what appears to be an ill-considered letter to the artists threatening a lawsuit which goes against the entire philosophical base upon which Wikipedia rests. The agreement with Orange is yet another manifestation of this same philosophical mutation.
As far as pointing out that somebody is only 18 and is acting like a child, that seems to me to be a fairly objective statement, since someone who is 18 (or younger) may still be psychologically a child. That this person is allowed to be in a position of authority on this sort of website will be the subject of future posts here. If you’re offended by this statement, I’m sure that you’ll be even more offended by this post. Age and experience DO count, sorry.
…and your point was? You seem to be suggesting that Kildall and Stein started the Wikipedia Art Controversy article themselves as a means of generating, uh, drama?
Can you give me any concrete proof that would suggest that this statement is true? Are you suggesting that Kildall and Stein are using sockpuppets on Wikipedia à la Wordbomb?
Leaving aside the fact that Wordbomb turned out to be right, how much of this idea was generated by the us against them party line that permeates so much of WikiLife?
@Paul Wehage: While I disagree with other points in your article and posts on this page, I think that you’re particularly wrong when it comes to your point about WP:IDONTLIKEIT.
Wikipedia Art’s primary problem was that it was something made up one day (WP:NFT), though it was also a self-reference (WP:SELFREF), and various points of what Wikipedia is not (WP:NOT). All of these were around long before Wikipedia Art, so your suggestion that Wikipedians were “moving the goalposts” is clearly false.
I don’t endorse the summary given for Werdna’s deletion of the page (it wasn’t correct), but I do endorse the deletion itself—not because Wikipedia Art was bad (it was interesting!), or because I don’t like it, but because it was inappropriate for Wikipedia under the established standards.